Posted
by
kdawson
on Tuesday June 01, 2010 @07:09PM
from the milking-it dept.

An anonymous reader notes that CSIRO has sued Verizon, AT&T, and T-Mobile in — wait for it — East Texas District Court. "Australia's peak science body stands to reap more than $1 billion from its lucrative Wi-Fi patent after already netting about $250 million from the world's biggest technology companies, an intellectual property lawyer says. The CSIRO has spent years battling 14 technology giants including Dell, HP, Microsoft, Intel, Nintendo, and Toshiba for royalties and made a major breakthrough in April last year when the companies opted to avoid a jury hearing and settle for an estimated $250 million. Now, the organization is bringing the fight to the top three US mobile carriers in a new suit targeting Verizon Wireless, AT&T, and T-Mobile. It argues they have been selling devices that infringe its patents."

How can you possibly arrive at the idea that CSIRO are engaging in patent trolling? They were the ones who actually developed the technology, their patents hadn't been submarined in any way, and the only reason they're fighting now is because they still haven't been paid the royalties the companies originally agreed to give them when they first implemented the technology. This is an unusual case of patent law, not because of any supposed trolling, but because it's a superb example of how patent law was always meant to be used.

True. However, I wonder whether the Australian taxpayers like the idea of paying an incrementally higher cost on all the wireless devices that depend upon the technology invented by CSIRO? Buy a cell phone? Pay more. Buy a wireless access point? Pay more. And so on. We know that if AT&T, Verizon, Dell, or whatever Australian equivalent lose the case and pay licensing fees they'll just pass the costs on to consumers. So, for their multi-million (billion?) investment in CSIRO, the Australian taxpayer gets to: A) pay more for products, B) fund a whole lot of lawyers for years and years.

Win!

As far as I'm concerned the only reason a government institution should be able to patent something is so that it can be royalty-free and someone else can't patent it. Making money off it seems ultimately self-defeating.

One could argue that this is worse. I expect multinational conglomerates to sue or demand royalties if given the chance, but a research body should arguably be above this, and their research should be freely available to all. This attitude is reflected in the way works for the US government are put into the public domain, and universities both public and private often release software under permissive license (BSD stands for 'Berkeley Software Distribution' and the MIT license comes from MIT).

Just because an act is normally taken by a patent troll, doesn't mean that acting in that way makes you a patent troll. If you are undertaking legal action, the smart thing to do, regardless of the merits of the case, is to do whatever you can to maximise the likelihood of success.

For patent infringement cases in the US, that means filing in the East Texas District Court.

If you're looking to recoup a few billion dollars, and taking a particular action gives you an extra 10% (for example) chance of winning, wouldn't you do it?

Or, to put it another way, boiling it down to the simple logic of the statements: let A be the statement "You are a patent troll." Let B be the statement, "Your case will be filed in East Texas District Court." A implies B. B does not necessarily imply A.

So in effect, the CSIRO wants to be be paid by the chipset makers, and then by the companies that use those chipsets, seems greedy

I agree. I have no problem with the organisation receiving royalties from the companies who misuse their IP, but going after their customers is just not on. While I have no love for telecommunications companies, in principle they should only sue the companies who directly use their technology.

>/Are you suggesting that the only way someone can legitimately enforce a patent is with a party that has been forewarned?/

No, I'm not suggesting that. However, if CSIRO is going to be painted as a good guy while suing software developers, I'd like to know what narrow limits they're placing on their aggression/retaliation in order to deserve that.

Am I safe? Is Red Hat safe? Are small businesses safe? Are other research institutes safe?

And the question I posted below: if CSIRO's law suits are justified because their business partners broke signed deals (as the original reply claims), why don't they sue for breach of contract instead of software patent infringement?

As somebody insightfully pointed out above, the money CSIRO makes from these royalties will be used to fund more research - recouping the government's investment in R&D, so to speak. We may pay more for Wifi devices, if the manufacturers try to pass it on (although I suspect the highly-competitive nature of the market may mitigate that somewhat), but ultimately they'll be a net inflow back to the Australian people.

And NASA's been embroiled on the receiving side with patent litigation with Boeing.

Thing is, at the end of the day, this is the real world, and people like to protect the R&D they make. And as an Australian citizen, who's taxes fund this research, I would like to see the CSIRO being smart, as opposed to being dumb, and getting walked over by big manufacturers.

I would agree that NASA should release their patents as well, and the same would go for any other US government agencies and agencies of other governments. It's a waste of taxpayer's money all around (unless you are a lawyer, perhaps). If you want others to put in a share for research, do it collectively with an organization like CERN, or have your research be privately funded.

Most of the world sees their government and its subsidiaries as more answerable than a corporate or multinational.

You can vote out a government, but a corporate monopolist is here to stay - until they get bought out by another one.

I have heard of this organisation before. If it is a choice between corporate pirates or a Quango I will usually try and avoid the corporates. In the UK, we are just about to close a load of quangos that have outstayed their welcome. I imagine that there are many here on/. who would love to close down Microsoft. Too bad. They are not going anytime soon and they are just one of many.

And it's not just an "idea", it's an investment that they invested a bucketload of money in perfecting, probably more money than you and I have seen in our lives, and took them several years.

It's only naturally that after say, publishing a paper on it, they don't want to see other people come and read the paper, take those years of research, and make money off stupid consumers like you and I, without the original brains behind the invention getting a cent.

And they're a research institute. They're interested in creating good quality research, not in offshoring US jobs to China. It seems a bit ridiculous that you expect them to be a manufacturing house as well, in order to "keep" their inventment/research. That seems completely unfair.

The NIH does cancer research, AIDS research etc. You don't see Americans cry bloody murder when the NIH then goes to sue pharmaceutical giants that refuse to pay royalties do you? (I've already pasted the link to that above - but here it is again http://www.nature.com/nm/journal/v6/n12/full/nm1200_1302a.html [nature.com]).

Duverger's law is that a plurality election system will converge to two parties. If both parties support a measure, such as the Sonny Bono Copyright Term Extension Act of 1998 and the Digital Millennium Copyright Act of 1998, how can one vote out that kind of government?

Do you realize how much money research and development costs? Do you realize that the only way it makes sense to pursue research and development is if it can support you financially? Do you realize why patents are a _good_ thing (not software patents). No? Well then you, sir, are a fucking moron. This is the real world not some hippie commune. Grow the fuck up. If you can't realize why CSIRO getting money it deserves is a good thing, then fuck you. If you can't realize why NASA getting royalties for THEIR research as well, then fuck you.

Yes, independent and government owned, you find that difficult to grok? Is the simplistic ideology you use to filter reality getting in your way of your understanding? Time to drop it and develop a less B&W view of the role of government. It will only make you wiser.

If people actually develop new patentable technology how does enforcing their legal rights over that make them a patent troll? Even if they don't develop, but only acquire a valid patent, how does suing for that make them a troll?

In this unusual circumstance, the assertion that "At some level, this will mostly harm end users." isn't really correct at all.

Without the invention of these technologies, the telco's wouldn't have a product to sell. These technologies were funded by the Australian taxpayer. A patent was placed to ensure the invested cost of research could be recovered. US industry saw the technology, liked it, and used it without permission.

Should the CSIRO win the case, they will use the money to develop more useful technology, which in turn will enrich the lives of consumers everywhere. This will mostly benefit end users. Should the CSIRO lose, the corporates will spend the money on more backroom deals, enforcement of oligopoly, DRM, lobbying, gold plated executive bathrooms and so on. This will mostly harm end users.

You do realise that the CSIRO is a government organisation, therefore, is the Australian Government, and you are accusing the Australian Government of being unable to produce anything of value?

I suppose that you can argue that they don't (see: Senator Conroy, Internet Villian of the Year 2009).

On the flipside I don't believe governments really fit into the narrow scope of a patent troll. How about, Australian taxpayers invested in researching technology that may otherwise never be developed. US corporations rip that technology off despite knowing full well that it was patented. I advocate that the corporations need to pay up. You advocate that corporations, some of whom actually are patent trolls, should be able to ignore patents if they are held by the Australian taxpayer's organisation for scientific and industrial research, to prevent that organisation from developing more technologies?

That's the entire business model of Acacia and Intellectual Ventures. These are the quintessential patent trolls.

My understanding of a patent troll, which seems to be the definition being used in regard to a NPE on the page you cited above also, is someone who floats an idea and lodges a patent which is invalid by reason of their having not specified an actual method or design by which that idea is to be realised.

Remember what a patent actually is. It is an agreement to publish to the world a method for realising some original invention. If a third party cannot from the patent reproduce the invention, it's obviously not a patent, yes?

CSIRO developed actual working hardware. It specified the design to such an extent that 3rd parties have misappropriated their work and are illegally (facially) making money out of this misapproriation. You are perhaps using this design right now. It's real, it's an original invention, it is most certainly not a troll.

by defintio

As an Australian taxpayer, I find it objectionable that you think I should donate my money to foreign private corporations only to have to buy back what I paid to develop. We invested millions of dollars in this and we would like the return for our investment, thank you very much.

Oh and as far as patents existing, I definitely know they do, because I had a patent (which is was a troll by a looser definition) hanging over the work I did. We were told "you develop that and see what we do." We called their bluff. It was a bullshit patent. That might give some context to "I haven't been sued [or even threatened] by the CSIRO," which was in any case a quip leading into my actual point that they only sue on valid patents they rightfully own. Your logical analysis was supercilious.

Unfortunately, many moderators don't understand the difference between "I don't agree with you" and "troll."

Unfortunately there is no mod for logically defective post. Maybe it should have been rated Overrated instead of Troll, but his entire point is based on affirming the consequent [wikipedia.org]. (See also this illustration [slashdot.org] in reply.)
It was probably modded Troll because the very post he was responding [slashdot.org] to had already pointed this fallacy out.

In any case, CSIRO isn't acting against software developers, it is asking to be paid royalties by hardware manufacturers who have been freeloading on their WiFi technology for about a decade. Dell, HP, Microsoft, Intel, Nintendo and Toshiba have already paid up, and now CSIRO are asking Verizon, AT&T and T-Mobile to do likewise.

US companies expect and require everybody to pay royalties on their technology, so they have no right to complain when developers from other countries do likewise. Same rules for everybody: it's only fair.

Most of the patents they are suing over are the core signal filtering tech used by 802.11N wireless. Basically if you make anything that is compatible with 802.11N, you should be sending these guys a few $$$ (as prior settlements have shown).

Pretty much the whole industry said "cor struth, that's a nifty signal filter you have shown implemented in hardware, we will make that a part of the standard and pay you a small amount to use it", however when it came time to write the cheques the bits "pay you a small amount to" were completely forgotten. Now they are left with a large infrastructure they helped make based off technology that is supposed to be licensed.

So far a little aussie research company who gets paid about $80M a year by the government to help prop them up has recieved $250M in "back royalties", looks like its payday again soon:)

The conventional definition of patent troll is definitely a body who 'develops' some obvious piece of technology, but never commercializes or publicizes it, instead waiting and hoping for some other group to do the obvious thing, and then to have to pay them big money for having done nothing.

The key element of the trolling problem is that the invention is obvious, but got through the patenting process because the patent office is overwhelmed and incompetent. The supposed 'invention' is being invented over and over again because EVERY engineer comes to the same conclusion when faced with the problem. Nobody is stealing CSIROs ideas and commercializing them, they are coming up with the SAME ideas and commercializing them. Patents were not intended to reward the first to write down every obvious idea, but that is what they have become, and those who abuse the process are labeled trolls.

The key element of the trolling problem is that the invention is obvious, but got through the patenting process because the patent office is overwhelmed and incompetent.

Yes "originality" as I expressed it is more correctly described as a "non-obvious improvement." In any case the patent would still be invalid (if tested in court) because it lacks the requisite originality/non-obviousness (how ever you want to put it). So I pretty much covered that.

It's not that the patent office is overwhelmed and incompetent, it's that increasingly, and this is the certainly the case in Australia, and I believe in the US also, patents are granted presumptively. The week after this innovation in the patenting process came into effect some engineer in Melbourne patented the wheel.:)

Nobody is stealing CSIROs ideas and commercializing them, they are coming up with the SAME ideas and commercializing them.

I'm not a telecommunications hardware engineer, so I can't judge the originality of CSIROs invention on technical grounds. OTOH it's stretches credibility to imagine Intel, Microsoft, HP, Toshiba et al. simply rolling over and paying up for an invention which so obviously lacked the novel step as to render the patent invalid. If the current defendants, on considering their position don't do the same, we should have a good assessment of how original the invention actually way.

Yes, but if CSIRO hadn't come up with the technology and some corporation had, we'd be paying the corporate R&D costs not to mention the royalties they imposed on other companies, which would be likely higher than what CSIRO are asking.

The CSIRO Patents cover a lot more than just software. It is a complete signal processing system that includes hardware and software. As stated before you cannot patent an algorithm and strictly speaking software should fall under the algorithm principle. But if the software is just a part of a whole system then the whole system is covered under the patent. It would be possible for some one to create another patent that uses different hardware and the same software. The hardware would need to be quite different to make sure it doesn't infringe on the existing CSIRO patent.

As the CSIRO had a need (develop a better radio telescope) and they actually developed and built this system they are the true inventors and cannot be considered as trolls